|The Constitution of Pakistan||
Presidential Reference against the Chief Justice of Pakistan
and related proceedings
On March 9, 2007, President Pervez Musharraf filed a reference (see text at dawn.com) against the Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry, under Article 209 of the Constitution, on charges of misconduct.
On the same day, the Chief Justice was rendered "non-functional" by presidential decree (Notification. F(2)/2005 AII. Gaz. of Pakistan, Islamabad, Part III, p675, March 9, 2007) which declared, without citing any specific law, that the Chief Justice could not carry out the functions of his office while the reference was pending against him.
On the same day, the President also appointed the next senior-most available judge on the Supreme Court, Mr. Justice Javed Iqbal as the Acting Chief Justice (Notification. No. F. 529(2)/2007-Secy. Gaz. of Pakistan, Islamabad, Part III, p675, March 9, 2007). The senior-most judge of the Supreme Court after the Chief Justice is Mr. Rana Bhagwandas, who was on leave and out of the country at the time.
On the same day, the Supreme Judicial Council was constituted to hear the reference. The Acting Chief Justice, Mr Justice Javed Iqbal headed the Council. The other members were the next two senior-most judges of the Supreme Court, Mr. Justice Abdul Hameed Dogar and Mr. Justice Sardar Muhammad Raza Khan, and the two senior-most Chief Justices of the High Courts, Chief Justice of Lahore High Court Mr. Justice Iftikhar Hussain Chaudhry and Chief Justice Sindh High Court Mr. Justice Sabihuddin Ahmad.
The Chief Justice appeared before the Supreme Judicial Council for the first time on March 13, 2007. He presented "a four-page statement which, among other things, called for reconstitution of the judicial council by excluding three members against whom he had raised objections."
This and subsequent proceedings of the Supreme Judicial Council were held "in-camera." The Chief Justice however called for an "open trial".
On March 15, 2007, the President declared that the Chief Justice was being sent on forced leave under the Judges Leave Order, 1970 (P.O. 27 of 1970) (as validated under the Validation of Laws Act 1975). It appears this declaration was made to provide legal cover to the presidential decree. (Notification. F1(2)/2005 AII. Gaz. of Pakistan, Islamabad, Part III, p711, March 15, 2007)
On March 21, 2007, Mr. Justice Rana Bhagwandas returned to the country, and the President appointed him as the Acting Chief Justice of Pakistan from the date he ended his leave. (Notification. F2(1)/2007 AII. Gaz. of Pakistan, Islamabad, Part III, p781, March 22, 2007)
On March 24, 2007, Mr. Justice Rana Bhagwandas returned from leave and took oath as Acting Chief Justice.
On April 18, 2007, the Chief Justice filed a petition before the Supreme Court regarding "constitution of the Supreme Judicial Council without the CJP, the personal bias and prospects of advancement of some members of the council, alleged malafide of the referring authority and Prime Minister Shaukat Aziz, the haste with which the referring authority (the president) acted against the CJP, illegal suspension and forced leave, illegal assumption of office by the Acting Chief Justice, the executive assault on the independence of judiciary and in-camera proceedings of the SJC." The Chief Justice "requested the Supreme Court to restrain the council from hearing the reference as some members harbour bias against the petitioner, rendering them ineligible to be a member of the SJC." On April 19, 2007, the petition was taken up by a three-member bench comprising Mr. Justice Sardar Mohammad Raza Khan, Mr. Justice Chaudhry Ijaz Ahmed and Mr. Justice Hamid Ali Mirza. The bench issued notices to the respondents to the petition and adjourned its proceedings till April 24, 2007.
On April 24, 2007, Mr. Justice Sardar Mohammad Raza Khan declined to head the bench because, as a member of the Supreme Judicial Council, he was "a signatory to the Supreme Judicial Councilís endorsement of the presidential reference." It appears this was a reference to the Supreme Judicial Council's order restraining the Chief Justice from functioning in his official capacity. He requested the Acting Chief Justice to "form a full court or a larger bench to hear a number of identical petitions challenging the formation of the council and the reference against the suspended chief justice."
On April 26, 2007, the Chief Justice filed an application before the Supreme Court seeking the constitution of a full court (comprising all the judges on the Supreme Court) to hear his petition as well as other petitions related to the same issue.
On April 28, 2007, the Acting Chief Justice constituted a five-member bench headed by Mr. Justice M. Javed Buttar, and additionally comprising of Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Ijaz Ahmed and Justice Hamid Ali Mirza.
On May 2, 2007, the government also requested a full court, arguing that there were five judges (other than the three who are or had been on the Supreme Judicial Council hearing the presidential reference) senior to Mr. Justice M. Javed Buttar and two other judges not on the bench who were senior to three other members of the bench. The thrust of the argument was that the five-member bench was too junior to hear such an important matter.
On May 7, 2007, the five-member bench stayed the proceeings of the Supreme Judicial Council, and at the same time requested the acting Chief Justice to constitute a "full court" to hear the petition of the Chief Justice as well as 23 other petitions challenging the reference against the Chief Justice. The order of this bench specifically barred Mr. Justice Rana Bhagwandas, Mr. Justice Javed Iqbal, Justice Abdul Hameed Dogar and Mr. Justice Sardar Mohammad Raza Khan from sitting on the full court that would be constituted.
On May 8, 2007, the Acting Chief Justice, Mr. Rana Bhagwandas, appointed a 14-member bench headed by Mr. Justice Khalilur Rahman Ramday and additionally comprising Justice Mohammad Nawaz Abbasi, Mr. Justice Faqir Mohammad Khokhar, Mr. Justice Falak Sher, Mr. Justice Mian Shakirullah Jan, Mr. Justice M. Javed Buttar, Mr. Justice Tassaduq Hussain Jillani, Justice Saiyed Saeed Ashhad, Mr. Justice Nasirul Mulk, Mr. Justice Raja Fayyaz Ahmed, Mr. Justice Chaudhry Ijaz Ahmed and Mr. Justice Syed Jamshed Ali and two ad hoc judges -- Mr. Justice Hamid Ali Mirza and Mr. Justice Ghulam Rabbani. The bench excludes the four judges specifically barred from sitting on the bench by the five-member bench that requested the full bench.
On May 14, 2007, at the first hearing of this bench, Mr. Justice Falak Sher refused to sit on the bench citing: "On account of seniority and being the senior-most judge in the country, it would be improper for him to hear a case in which the chief justice is a party, who like other judges of the Supreme Court is junior to him from four to nine years." Mr. Justice Falak Sher happens to be the senior-most judge on the country's superior judiciary (Supreme Court and High Courts), but since seniorty with regard to elevation to the post of Chief Justice is decided on the date of appointment of the Supreme Court, not on the date of appointment to a High Court, he has not been appointed Chief Justice.
Since May 14, 2007, the full bench has conducted daily hearings on the case.
Last update: June 25, 2007
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